Paternity/Parentage

In Nevada, paternity may be established in a legal action brought by natural person, or by the State. As a result of legislation mandated by the Federal government in 1996, paternity may be established by the mother and father executing an affidavit for the acknowledgment of paternity, which is often made available and signed at the hospital when a child is born. Sixty days after it is signed, an acknowledgment is “deemed to have the same effect as a judgment or order of a court.”

An action for paternity can be brought at almost any time, but if it is filed before the birth of the child, it will be stayed until after the birth, except service of process and the taking of depositions. A paternity action is barred three years after the child reaches the age of majority.

 

A Presumption of Natural Fatherhood

Certain facts create a presumption that a man is the natural father of a child, the most common of which are marriage to the mother, cohabitation with the mother for at least six months before and through the period of conception, and genetic (“DNA”) tests showing a probability of 99 percent or more that a man is the father. Presumptions may be rebutted by clear and convincing evidence, and if two conflict, the presumption “which on the facts is founded on the weightier considerations of policy and logic controls.”

 

What if the Parents were Not Married?

The mother of a child born out of wedlock has primary custody of the child by statute if no judgment of paternity or custody order has been entered, unless the father has provided sole care and custody of the child for six weeks or more after abandonment by the mother.

Generally, an adjudication in a decree of divorce relating to a child constitutes an adjudication of paternity of that child, and blocks any later action regarding the child’s paternity. However, a party may be allowed to file an action to prove nonpaternity because of extrinsic fraud in the original proceeding.

The burden is on a party seeking to change the surname of a child born out-of-wedlock to prove, by clear and convincing evidence, that the substantial welfare of the child necessitates the change. A father is not “entitled” to have a child bear his surname once paternity is established, by reason of paying child support or otherwise.

The Nevada Supreme Court has been fairly consistent in relying upon actual biological paternity, rather than “psychological theories of parentage” in determining who should be considered a “father,” at least in the context of non-biological men attempting to nevertheless assert that they should be considered the fathers of children.

Once paternity has been established, essentially the same rules govern child custody, visitation, and support as would apply between parents who had been married, and divorced.

WILLICK LAW GROUP has litigated many paternity cases, and the attorneys of this office are familiar with the relevant laws, procedures, and public policies, which experience serves our clients well in the litigation of these necessarily emotional and difficult cases.

 

Links to Other Web Sites

• NRS 125C.003 – Best interests of child: Primary physical custody; presumptions; child born out of wedlock
• NRS 126.041 – Establishment of relationship
• NRS 130.402 – Becoming responding tribunal in proceeding to determine parentage
• NRS 425.380 – Establishment of paternity and enforcement of support: Duty of District Attorney; Authority of Attorney General
• NRS 126.053 – Voluntary Acknowledgment of Paternity
• NRS 126.051 – Presumptions of Paternity

© Willick Law Group

 

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